Guest columnist Steven H. Steinglass, dean emeritus at the Cleveland-Marshall College of Law at Cleveland State University, writes that Ohio's most recent effort to update its constitution fell short in part because state legislators controlled the Ohio Constitutional Modernization Commission.(Jackie Borchardt/cleveland.com)

CLEVELAND -- Aesthetically, the Ohio Constitution is a mess. With nearly 57,000 words, it is too long. It also lacks clarity and transparency and is full of obsolete, federally unconstitutional, and statutory-like provisions.

But these flaws can be overlooked, if a state constitution can do its job.

Does it appropriately govern the relationships among the legislative, executive and judicial branches? Does it provide an appropriate and respectful role for local government? Does it contain a declaration of enforceable rights to provide safeguards from governmental abuse? And does it provide affirmative and effective guarantees in areas like education in which the state (as contrasted to the federal government) is the principal actor?

Despite its many strengths -- the framework for keeping state debt in check comes to mind -- the Ohio Constitution falls short.

And sadly, the recent effort by the Ohio Constitutional Modernization Commission to review the constitution also fell short when the General Assembly killed this bipartisan commission, effective June 30, four years before its original July 2021 sunset date.

Modeled after a successful commission from the 1970s, the recent commission, which was created in late 2011, recommended the repeal of 21 obsolete provisions, the removal of which (if approved by voters) would have shortened the constitution by 20 percent.

It also recommended the adoption of two technical provisions involving state debt and the replacement of the offensive phrase "the insane, blind, deaf and dumb" in a section authorizing services for the handicapped. None went to the voters. However, it did begin the process that led to voter approval of the 2015 amendments that barred initiated monopolies and that revised the process for apportioning the General Assembly. But it left behind many issues that should have been addressed, including:

Congressional redistricting. In 2014, the commission's legislative committee set the table for reform of the process for apportioning the state legislature. But the 2015 voter-approved amendment did not apply to congressional redistricting, which remains the responsibility of the General Assembly. The failure to address congressional redistricting has led to a citizen-initiated effort to place congressional redistricting on the fall 2018 ballot.

Term limits. Despite strong support among commissioners for changes in the eight-year chamber-specific term limits for the state legislature, the constitutional commission never put the committee-recommended term-limit proposals on its agenda.

Statutory initiative. Ohio has a statutory and a constitutional initiative -- devices that permit petition-signers to present proposed statutes and constitutional amendments directly to voters. But in the 105 years since the adoption of the initiative, Ohio voters have used the constitutional initiative almost six times more frequently than the statutory initiative. To correct this imbalance and to limit constitutional clutter, the relevant committee recommended strengthening the statutory initiative by eliminating the need to collect additional signatures on a supplementary petition and by creating a five-year safe harbor during which the General Assembly could only revise or repeal initiated statutes by a two-thirds vote. This proposal also tweaked the constitutional initiative by increasing the percentage for voter approval from 50 percent to 55 percent and by limiting initiated constitutional amendments to the fall ballot in even-numbered years when voter turnout is highest. The commission took no action on this proposal.

Voting and mental capacity. The constitution denies the vote to any "idiot, or insane person." The commission was unable to muster the required two-thirds vote to approve a committee recommendation to replace this offensive language.

Gender-specific language. Thirty-eight sections of the Ohio Constitution contain inappropriate gender-specific language, but time ran out before the commission could address this issue.

Education. The constitution requires that the state provide a "thorough and efficient system of common schools." This provision was at the heart of the landmark DeRolph school-funding litigation. Public education advocates expressed support for further defining and strengthening this constitutional standard, but others argued that the judiciary should not have any role in enforcing the education mandate. In the end, the relevant committee did not recommend any changes.

Home rule. Drawing the precise line between the power of local government and the authority of the state is exceedingly difficult. But the state has repeatedly asserted itself over such local issues as the residence of city employees, local minimum wages, employment of residents on governmental projects, predatory lending, gun control and fracking. Thus, it is not surprising that the Ohio Municipal League argued that the pendulum had swung too far to the state. Time ran out before the relevant committee could begin addressing home rule.

The commission's unfinished agenda includes issues that are both difficult and that should have been easy -- all of them documented in the substantial record the commission left behind.

What is not apparent from the cold record is why the latest commission was less successful than its 1970s counterpart: Chief among the reasons were legislative control of the commission, the absence of effective private or public leadership, and the corrosive partisanship that exists today.

Steven H. Steinglass is dean emeritus and professor emeritus at the Cleveland-Marshall College of Law at Cleveland State University. From 2013 to 2017, he was the part-time senior policy advisor for the Ohio Constitutional Modernization Commission.

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